112 N.C. App. 429 | N.C. Ct. App. | 1993
Defendant brings forward three assignments of error. Assignments of error not brought forward on appeal (Nos. 1, 2, 3, 4, and 5) are deemed abandoned. N.C.R. App. P. 28(b)(5). After a careful review of the briefs, transcript, and record, we conclude that defendant received a fair trial, free from prejudicial error.
I.
In his sixth assignment of error, defendant contends that “[t]he trial court erred in excluding testimony of a pertinent trait of defendant’s character. Defendant’s employer, Scott White, would have testified that [he told a social worker] T did not think Chris [defendant] could do anything like this.’ . . . Defendant is entitled to a new trial because he was not allowed to present evidence that he is not the kind of person to commit the crime for which he was being tried.” We conclude that defendant is not entitled to a new trial.
Defendant contends that this statement infers “law abidingness” and that it was defendant’s option to put his own character at issue. On the other hand, the State contends that the statement “was not evidence of a pertinent trait of defendant’s character, but was simply White’s opinion as to whether defendant was guilty of the alleged crimes.” In his reply brief, defendant responds to the State’s argument as follows:
[T]he testimony was not about what the witness thought the defendant actually did, but about what he had the disposi*434 tion to do. The witness’ knowledge of the defendant’s disposition would have been helpful to the jury. After all, the witness had known the defendant since high school.
Second, the testimony was not about whether the defendant did a particular act, but about whether he had the disposition to do acts like this. Such testimony is routinely admitted where it tends to show that the defendant has a tendency to molest children. It should be equally admissible where it tends to show the reverse.
(Emphasis in original.) Recognizing that such testimony is routinely admitted when introduced by the State to show a defendant’s tendency to molest a child and assuming, without deciding, that the statement was sufficient to bring defendant’s character into issue and therefore admissible, we find no prejudicial error here.
At this point we note that the State and defendant disagree as to the which standard of prejudicial error under G.S. 15A-1443 applies. The State argues that the nonconstitutional standard for prejudicial error applies. G.S. 15A-1443(a) (“A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant”). Defendant argues, citing Michelson v. United States, 335 U.S. 469, 93 L.Ed. 168 (1948), that there is a federal constitutional right to put one’s character at issue and that the constitutional standard for prejudicial error applies. G.S. 15A-1443(b) (“A violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless”). However, our Supreme Court in State v. Squire, 321 N.C. 541, 549, 364 S.E.2d 354, 359 (1988) (homicide case) used the nonconstitutional standard of prejudicial error, G.S. 15A-1443(a), when the trial court erred in precluding defendant from introducing the testimony of a witness regarding defendant’s character traits. Accordingly, we apply the nonconstitutional standard of prejudicial error here. G.S. 15A-1443(a).
The State argues that even if the exclusion of Mr. White’s statement was error, it was harmless error. As noted supra, we
We are not persuaded by defendant’s argument and we conclude that defendant has failed to meet his burden under G.S. 15A-1443(a). In his brief, defendant concedes that at trial “[i]t was beyond dispute that [the child] had sexual contact with someone, owing to the presence of a sexually transmitted disease.” The evidence at trial overwhelmingly indicated that the sexual contact was by defendant despite defendant’s evidence that he tested negative for any sexually transmitted disease approximately two months after the child was tested. Here, the child’s copiously detailed testimony was consistent with what she told every person with whom she spoke about the instances of abuse. We particularly note that on several occasions at trial the State was quite deliberate in having the child specify the person who sexually abused her. For example, the child testified that the doctor examined her “private” and asked her if anyone had been bothering her. The child testified that she responded to the doctor’s question by answering “my daddy.” The State then asked the child “[a]nd when you say your daddy, you are talking about Chris Ramseur, Mr. Brice, or Mr. Gillespie?” The child answered “Chris” and the State confirmed this answer by asking the child if “Chris” was the man seated in the courtroom. The child responded “yes.” Furthermore, at the end of direct examination, the child testified as follows:
Q: And had anybody else that you know of done the same thing to you that your daddy did?
A: No sir.
Q: Did Roger Brice ever do anything like that to you?
A: No.
Q: Did Mr. Gillespie ever do anything like that to you?
A: No.
Finally, even assuming arguendo the applicability of the constitutional standard of prejudicial error, G.S. 15A-1443(b), we conclude after careful scrutiny of all the evidence that any error here was harmless beyond a reasonable doubt. Accordingly, this assignment of error fails.
II.
In his seventh assignment of error, defendant argues that “[t]he trial court erred in not instructing the jury on taking indecent liberties with a minor.” We disagree.
Our Supreme Court has repeatedly held that taking indecent liberties with a minor is not a lesser included offense of first degree sexual offense. State v. Williams, 303 N.C. 507, 514, 279 S.E.2d 592, 596 (1981); State v. Ludlum, 303 N.C. 666, 674, 281 S.E.2d 159, 164 (1981). See also State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982). Defendant argues that “[nonetheless . . . the legislature intended indecent liberties to be a lesser included offense of both crimes [rape or sexual offense].” Based on the precedent established by Williams and Ludlum, we find no error.
III.
In his eighth assignment of error, defendant argues that “[t]he sentence in this case constitutes cruel or unusual punishment in violation of defendant’s state and federal constitutional rights.” We disagree.
Defendant’s argument was not raised before the trial court. “[I]t is well-established that appellate courts ordinarily will not pass upon a constitutional question unless it was raised and passed upon in the court below.” State v. Degree, 322 N.C. 302, 309, 367 S.E.2d 679, 684 (1988) (citations omitted). Accordingly, we do not pass upon the question. However, we note that a life sentence
IV.
For the reasons stated, we conclude that the defendant received a fair trial, free from prejudicial error.
No error.
